DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 48/2013
Ms. Charu Goyal
W/o Shri Naveen Goyal,
R/o D-32, Delhi Citizen Society,
Sector-13, Rohini,
Delhi-110085. ….Complainant
Versus
M/s Country Club (India) Ltd.
(Through its Managing Director)
25, Community Centre, UG Floor,
East of Kailash, Near Sapna Cinema
New Delhi-110065
Also at: Amrutha Castle
5-9-16 Saifabad, Opp. Secretariat,
Hyderabad, Andhra Pradesh-500063
Also at: Country Club Eros Regency
Charmwood Village, Surajkund Road,
Faridabad, Haryana. ….Opposite Party
Date of Institution : 24.01.13 Date of Order : 27.01.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the case of the complainant is that the OP has been advertising in all leading newspapers and also through SMS regarding its Country Club Family Holiday Scheme stating world class holiday in and outside India for its members for a period of 30 years. The representation of the OP induced complainant by stating that the OP had around 40-50 resorts with 4 to 5 star ratings and clubs within India and also have holiday homes outside India at Dubai, Sri Lanka, Bangkok and Pataya. The representative of the OP informed the complainant that there is a special package of the OP company with membership fees of Rs.1,60,000/- in which the complainant shall get free stay at many destination around India and abroad. On believing the assurance and representations of the OP company, complainant made a payment of Rs.20,000/- on 20.1.2011 vide Citibank Credit Card No. 5546379691843021 and another payment of Rs.1,40,000/- on 23.01.2011 through HDFC Bank Credit Card No. 4050282006142540 which were duly received and acknowledged by the OP vide receipts No. DEL-4228 and DEL-4229 dated 31.01.2011. It is submitted that at the time of receipt of payment the complainant was also informed that there shall be a free-look period of two weeks and if the complainant cancels the membership within that period, the said entire membership fees shall be refunded. The complainant intimated the OP of his proposed holiday plan abroad and was shocked when the executives/ employees of the OP intimated the complainant that there shall be charges of Rs. 6,000/- to Rs.8,000/- per week and Rs.12,000/- to Rs.18,000/- per week depending on location abroad who further went on to state that the same has been duly mentioned in the agreement. The complainant requested the OP to give a list of resorts of the OP company as she could find barely 4-5 resorts and the remaining were clubs instead of 40-45 resorts as marketed by the employees of the OP company. She further found that the OP had misrepresented photographs of resorts of another company, i.e. Country Inn and Suites as theirs. She came to know about several incidents of innocent customers being cheated and defrauded by the OP company. The complainant immediately requested the OP through e-mail on 26.01.2011 to cancel the agreement and refund the membership fees as at the time of signing/ execution of agreement, the complainant was told that there is a free-look period of two weeks and if she cancels the agreement, her entire amount would be refunded. However, executives/ employees of the OP company to the contrary declined to refund the membership fees stating that the same is non-refundable and in case the complainant desires to get free stay at abroad destinations, she shall opt for another package, namely, Kool Dubai, the membership cost of which is Rs.3,50,000/-. It is submitted that the complainant has written various emails to the OP and also sent various requests to refund the membership fees but the OP has been bent upon harassing the complainant. When the complainant got no satisfactory response to emails, the complainant’s husband visited the OP’s office and the official of the OP threatened him to forget his money and the complainant’s husband was forced to call PCR at around 4.57 pm on 05.05.2011 and police officials of P.S. Amar Colony arrived at the spot but no action was taken against the OP company. Because of malafide intentions and dishonest acts of the OP, the complainant has suffered huge mental torture and harassment at the hands of the OP by forcing the complainant to run from pillar to post to get her hard earned money refunded. OP has indulged in unfair trade practices and collected money from the complainant and hundreds of other innocent people and misappropriated the same to attain the ulterior motive. Hence, the complainant has filed the present complaint for issuing following directions to the OP :-
- to refund the booking amount of Rs.1,60,000/- along with interest @ 24% p.a. calculated from 23.01.2011 till the date of realization.
- to pay a further sum of Rs.3,00,000/- towards mental agony and harassment caused by the OP to the complainant along with Rs.51,000/- towards litigation expenses.
OP in the reply has inter-alia stated that the courts of Delhi do not have the territorial jurisdiction as the OP’s registered office is at Hyderabad which does not fall within the territorial jurisdiction of this Forum, hence this Forum is not having territorial jurisdiction to entertain the present complaint. It is submitted that complainant has not made out any deficiency against the OP for which they can be held responsible and ordered to pay any compensation or any amount to the complainant. It is further submitted that the country club is having various offers under different categories and for different periods and 30 years vacation membership is one amongst the various offers and that opp. Party owns resorts, clubs and has various affiliated properties and the list of properties are available on the website of Country Club which is open to everybody. Complainant had opted for a membership worth Rs.2,03,889/-. Out of the membership amount, the complainant has paid Rs.1,60,000/- and a discount of Rs.41,833/- was extended to her and Rs.2,056/- are still due from the complainant towards the membership fee and she has not paid for AMC. With the membership opted by the complainant, the complainant is entitled to avail 6 night 7 days vacation for 30 years in Blue season. It is submitted that there is no provision of free-look out period of 2 weeks or cancellation of membership within the alleged period. Complainant is misleading the Forum which is evident from the fact that the membership form clearly indicates that the membership fee is non-refundable. It is further stated that the membership fee is non-refundable as the same is not a deposit or investment. OP has various resorts and clubs in India and outside India and the list of these resorts and clubs is available on official website; hence the question of giving any misinformation to the complainant does not arise. It is submitted that the Country Club representative just explains the various benefits available to the prospective members and then the applicant is left to decide if he/ she wants to be enrolled in the membership or not. The terms and conditions of the membership were very well explained to the complainant and she had verified the contents of the agreement before according her consent to the same by signing the agreement. OP has not cheated or defrauded anybody. It is submitted that email dated 31.01.2011 by Mr. Naveen Goyal, husband of the complainant indicates threats to the representative of Country Club and to deter them from calling him. It is stated that the agreement is signed after going through all its contents and after understanding the same. Denying any deficiency on its part OP has prayed for dismissal of the complaint.
Complainant has filed rejoinder to the reply of OP and denied all the averments.
Complainant has filed her own affidavit in evidence. On the other hand, affidavit of Sh. Bharat Reddy, AR has been filed in evidence on behalf of the OP.
Written arguments are filed on behalf of the complainant. We have heard the arguments on behalf of the complainant and have also gone through the file very carefully.
Admittedly, the complainant had purchased a membership from the OP for an amount of Rs.1,60,000/- at Delhi. Therefore, this Forum has the territorial jurisdiction to entertain the complaint.
It is not the case of the complainant that the officials of the OP had not allowed her to read the club membership purchase agreement or the vacations agreement executed between her and the OP on 31.01.2011. Therefore, we are inclined to hold that the complainant had executed this agreement out of her free will and consent and no amount of force or undue influence had been used by the OP on her to execute the same.
The case of the complainant in the written submissions is that nobody had informed her that the amount to be deposited by her was non refundable. We do not agree with her since she had herself signed the document out of her free will and consent. Now, she cannot be heard to say that she was not apprised of any such clause.
The contention of the complainant that the OP’s representative had told her that the OP had more than 40- 45 resorts with 4-5 star ratings and clubs in India and abroad and also have holiday homes outside India at Dubai, Sri Lanka, Bangkok and Pataya also does not hold much water because the complainant has not filed the original agreement or copy thereof on record which if filed would have certainly thrown ample light to elaborate this fact. Therefore, she has withheld one very important document from this Forum.
Therefore, it is crystal clear that the complainant had taken the membership from the OP with the knowledge that except the clubs mentioned in the club membership purchase agreement and on the website of the OP OP had no other resort or club.
There is no iota of evidence on record to even show that the OP had offered 2 weeks free-lock period to the complainant within which period the complainant could cancel her membership and claim the refund of the money paid by her to the OP. However, in the present case, the agreement in question was executed between the parties on 23.01.2011 and it was only on 26.01.2011, that is, only after 3 days that the complainant had sent a representation to the OP to cancel the agreement and to refund the membership fees. By 26.01.2011, the complainant had not availed any of the services offered by the OP. In our considered opinion, such types of agreements/ contracts must always carry a reasonable free lock period, may be 7 days, so that the customer/ purchaser may give a second thought to the matter and may opt for cancellation of the contract/ agreement in case he/ she does not feel satisfied or does not want to avail the membership and in such a circumstance, the contract/ agreement should contain a clause for deduction of certain amount towards processing charges and other miscellaneous charges borne by the opposite party and completing the formalities. Such agreement / contact should never be onerous or one sided. If a contract is one sided and does not give any freedom or liberty to the customer to opt out of it and the customer has to abide by all the terms and conditions drafted in favour of the OP the same cannot be said to be a fair and conscious agreement. In the present case, as complainant had opted to cancel the agreement in question within three days of the execution of the agreement, the OP must have acceded to her request and refunded the amount after deducting some amount towards processing charges. However, the OP did not do so. Therefore, we hold that there was deficiency in service on the part of the OP.
In view of the above discussion, we hold the OP guilty of deficiency in service.
The prayer of the complainant is that OP be directed to refund the booking amount of Rs.1,60,000/- along with interest @ 24% p.a. calculated from 23.01.2011 till the date of realization. In support of this contention that the OP is bound to pay interest on the booking amount, reference has been made to the decisions reported in Bhaurao Dagdu Parkalkar vs. State of Maharashtra and Others (2005) 7 Supreme Court Cases 605, Alok Shanker Pandey vs. Union of India and Others (2007) 3 Supreme Court Cases 545, State of Maharashtra and Others vs. Kanchanmala Vijaysingh Shirke and Others (1995) 5 Supreme Court Cases 659 and HUDA vs. S.P. Jain 2004 Law Suit (SC) 723.
We have carefully gone through the decisions. In the present case, the complainant was herself responsible to a great extent for the execution of the agreement in question. Therefore, the OP must have also incurred processing charges.
Keeping in view all the facts and circumstances of the case, we direct the OP to refund an amount of Rs.1,50,000/- (after deducting Rs.10,000/- towards processing charges) along with interest @ 5% per annum w.e.f. 23.01.2011 till the date of payment and Rs.10,000/- in lumpsum towards mental agony and cost of litigation to the complainant within 30 days from the date of receipt of copy of this order failing which the OP shall be liable to pay the said amount of Rs.1,50,000/- alongwith interest @ 6% per annum from the date of filing of complaint till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 27.01.18.
